How Key Updates Under The MHSA Are Reshaping How Mines Must Plan And Respond To Emergencies At Its Underground Operations

On Friday, 28 March 2025, Notice 6052 was published in Government Gazette No. 52388, in terms of which the Minister of Mineral and Petroleum Resources, under sections 98(1)(zP) of the Mine Health and Safety Act, 1996 ("MHSA"), amended Chapter 16 of the Mine Health and Safety Regulations ("MHS Regulations")("the Notice").

In terms of the Notice, Chapter 16 of the MHS Regulations was amended by the substitution of the regulations contained in the Notice ("the New Regulations"). The New Regulations came into effect on 28 March 2025. The New Regulations are arguably far-reaching in certain instances, compelling mines to reshape how it plans and responds to emergencies at its operations. We highlight below some of the noteworthy amendments in respect to underground mines:

1. Mine Rescue Teams
   • At every underground mine, the employer shall provide and maintain, mine rescue teams, which are readily available at the mine. The number of mine rescue teams is calculated according to the maximum number of persons that could be underground at any one time. Previously, the minimum number of mine rescue team(s) required, where there could be between 100 and 1100 persons underground, was one mine rescue team. Now, according to the New Regulations, where there could be between 150 and 3600 persons underground, there must be at least two mine rescue teams. The number of mine rescue teams thereafter increases, as the number of persons underground increase. Where there are less than 150 persons underground, the mine is required to enter into a contract with a mines rescue service provider that has the resources to assist it with mine rescue teams.
   • In addition, each mine rescue team must consist of at least eight members "trained at the mine", whereby a minimum of six members need to be "readily available" at the mine, to be deployed at any time, to any emergency. For a number of years, a six manned mine rescue team was adopted. Although it remains unclear as to why the compilation of the team has increased to eight, such increase may be onerous, in light of the increased number of mine rescue teams that are required to be available. Furthermore, the requirement for rescue team members to be "trained at the mine" is also unclear, bearing in mind that the mine is required to enter into a contract with a mines rescue service provider for each "mining shaft", whereby the mines rescue service provider is to, amongst others, train and certify mine rescue team members.
   • The New Regulations further require that at least two members of each mine rescue team must be holders of blasting certificates, and that each mine rescue team must have two members who are holders of an advance mines rescue member certificate of competency, who can captain and/or vice-captain the team during any emergency.
2. The minimum requirements for a control room and requirements during an emergency
   • In the case of an emergency at an underground mine, an emergency control room is to be established at a suitable location at the mine. The New Regulations prescribed the minimum requirements for the emergency control room. Such requirements include, but not limited to, a communication system between the control room and the fresh air base or emergency scene; an independent communication system where the mine can communicate with outside parties; and an emergency communication system that has a different ring tone in comparison to any other communication system, so that persons in the control room can immediately identify and attend to the incoming call on the emergency communication system in the event of an emergency. The emergency control room must, at all times, be under the control of a competent person as prescribed and who is the holder of a mine manager's certificate of competency. In addition, all sequence of events and instructions issued by the manager in control of the control room, are to be recorded by a person appointed as a competent person in the control room. A risk assessment is also required to be conducted, in writing, where all known and anticipated hazards and risks in and around the area of emergency are identified, together with measures to address such hazards and risks, before the commencement of the emergency operations.
   • During an emergency, additional obligations imposed on the employer include, amongst others, ensuring that: the person appointed in terms of section 12(1) of the MHSA, as well as Regulation 2.13(1) of the Minerals Act Regulations are present in the control room (and/or relieved by a person with similar qualifications and/or appointment); there are sufficient number of plans available in the control room indicating the route from the shaft to the scene of the emergency and possible escape routes; a fresh air base is established underground; and that no unauthorized person, other than mine rescue team members, proceed beyond the fresh air base directly into the area where the emergency is being dealt with.
3. Refuge Bays

In addition to the existing obligations to erect readily accessible refuge bays in the underground working of a mine, the refuge bays must now be constructed in such a manner that allows for the mines rescue service providers' available equipment, and to conduct rescue or recovery operations safety from such refuge bays.

4. "Missing person locator system"

A new obligation imposed on the employer by the New Regulations, is the obligation to ensure that no person proceeds underground without an intrinsically safe device to determine the last known location of such a person or persons in the event that they go missing while in the underground workings. A "missing person" is defined as "a person who is unaccounted for by the employer during or after any shift". Despite other measures that a mine has in place to prevent employees from going "missing" (such as designated travelling routes to and from working places, barricading of abandoned or closed working places to prevent inadvertent access thereto; training provided to employees in respect of travelling underground; etc), employers are now required to implement a tagging and tracking system regardless of the number of employees underground and the size of the operation.

As stated in the article entitled "South Africa: Mine Health and Safety Act, 29 of 1996 ("MHSA") – Amendments to the Regulations relating to Rescue, First Aid and Emergency Preparedness and Response", authored by Willem le Roux, Executive Consultant, and Celeste Coles, Executive (assisted by Kedibone Seroka, Associate), most of the New Regulations have been drafted in a peremptory manner by the use of the words i.e. "The employer must ensure...". In terms of the MHSA, an employer's obligations are limited by the term "reasonably practicable". Although the New Regulations do not reference "reasonably practicable", this does not imply strict liability on the part of an employer.

The failure on the part of any person (including the employer) to comply with the New Regulations constitutes an offence and is liable to a fine or imprisonment. In addition, the employer may be liable to an administrative fine, if the employer fails to comply with the New Regulations. It must be noted, however, a contravention or failure in terms of section 91(1) and 91(1B) of the MHSA to comply with a regulation, requires negligence as an element of the contravention or failure.

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